We’re an engineering firm facing great difficulties due to the economy. We need to lay off the employees in our surveying department, but one of them is on Family and Medical Leave Act (FMLA) leave to bond with his new baby. Do we have to hold his job open for him?

The answer is not as easy as one might think. An employee on a protected leave of absence has no greater rights than he/she would if actively working.

Nevertheless, various scenarios come to mind. For example, in the question posed above, if the surveying department consists of 15 people, and one of those employees is on FMLA for baby bonding time, there should not be an issue regarding laying off everyone in the department, including the individual on FMLA.

Multiple Layoffs
But different concerns might arise in a setting when there are cutbacks contemplated, and three people are subject to layoff—yet two of those individuals are on protected leaves of absence out of a workforce of 75 people.

In this situation, the targeting of two people on a protected leave might come under scrutiny. A claim of retaliation might result if the decision is not properly researched and backed by business necessity.

Keep in Mind
Many companies are facing layoffs, and there are few rules that govern employers, but the following concerns should be kept in mind:

• There is no “last hired/first fired” law unless there is an internal policy to that effect; therefore, job performance is a valid consideration in deciding which employees might be let go.
• Any internal policies/handbook rules should be followed to avoid a breach of contract claim.
• Layoff decisions should take into consideration whether individuals are on a protected leave of absence, as noted above, so as not to target those individuals.
• If the layoff falls within the parameters of the Worker Adjustment and Retraining Notification Act (WARN), those rules apply.
• If the company has organized labor, the terms of the collective bargaining unit should govern.

This is not an exhaustive list, and any layoff should involve examination of business needs combined with consultation with an employment law attorney to guide through these difficult times.

Reprinted with permission from the California Chamber of Commerce.